Opinion
No. SNSP 033966
December 10, 2007
MEMORANDUM OF DECISION
Whether the court should grant the defendant's motion to dismiss on the ground that the plaintiff failed to comply with General Statutes § 47a-23a.
On June 29, 2007, the plaintiff, Pedro Zapata, filed this summary process action against the defendant, Jose Mora. This action arises out of an alleged oral lease agreement for property located at 72 Myrtle Avenue in Stamford. In his complaint, the plaintiff claims that he agreed to lease the property to the defendant on a month-to-month basis. In support of his claim, the plaintiff alleges that the defendant failed to pay rent that was due on May 1, 2007. Additionally, the plaintiff alleges that the he served the defendant with a notice to quit on June 8, 2007, in which he ordered the defendant to vacate the premises by June 18, 2007.
On November 14, 2007, the defendant filed a motion to dismiss on the ground that the plaintiff failed to comply with General Statutes § 47a-23a. Thereafter, on November 16, 2007, the plaintiff filed an objection to the defendant's motion.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, ___ A.2d ___(2006). "[T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case." (Internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 337, 819 A.2d 803 (2003).
In support of his motion, the defendant begins by noting that the summons is dated June 15, 2007, but that the notice to quit orders the defendant to vacate the premises by June 18, 2007. He appears to argue that, pursuant to § 47a-23a, this discrepancy precludes the court from asserting subject matter jurisdiction over the plaintiff's claim. The plaintiff responds by arguing that § 47a-23a merely proscribes the date upon which a party may "issue" the summons. He asserts that, although the summons is dated June 15, 2007, the summons was not "issued" until June 23, 2007. As the summons was "issued" beyond the date upon which the defendant was obligated to vacate the premises, the plaintiff maintains that he complied with § 47a-23a.
"Summary process is a special statutory procedure designed to provide an expeditious remedy. . . . It enable[s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed. (Internal quotation marks omitted.) HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 647, 792 A.2d 165 (2002). "The failure to comply with the statutory requirements deprives a court of jurisdiction to hear the summary process action." (Internal quotation marks omitted.) Housing Authority v. Martin, 95 Conn. App. 802, 808, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006).
Section 47a-23a (a) provides in relevant part: "If, at the expiration of the three days prescribed in section 47a-23, the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises." (Emphasis added.) Accordingly, a resolution of this matter hinges on when the writ, summons and complaint were "issued."
General Statutes § 47a-23 (a) provides, in relevant part: "When the owner or lessor, or the owner's or lessor's legal representative, or the owner's or lessor's attorney-at-law, or in-fact, desires to obtain possession or occupancy of any land or building . . . and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates [for] nonpayment of rent when due for commercial property; such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land [or] building . . . at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy."
In Gallogly v. Kurrus, 97 Conn. App. 662, 667-68, 905 A.2d 1245 (2006), the court addressed circumstances that were nearly identical to those presented in this action. In that case, "the defendant was served with a notice to quit on October 8, 2004. On October 29, 2004, the date specified in the notice to quit, the plaintiff's counsel signed the summary process writ of summons and complaint." Id., 666. On November 1, 2004, the plaintiff delivered the writ of summons and the complaint to the marshal for service upon the defendant. Id. Thereafter, the defendant filed a motion to dismiss in which he argued that, pursuant to § 47a-23a, the trial court lacked subject matter jurisdiction because "the plaintiff improperly issued the summary process writ prior to the expiration of the time specified on the notice to quit, October, 29, 2004." Id., 667.
In resolving when the summary process was issued and when process occurred, the court held that "[t]his is an issue of statutory interpretation. In the absence of a statutory definition of the meaning of `issue,' we look to the common meaning of the word and its dictionary definition. `Issue' is defined by Black's Law Dictionary as meaning: `To send forth; to emit; to promulgate; as, an officer issues orders, process issues from a court. To put into circulation; as, the treasury issues notes. To send out, to send out officially; to deliver, for use, or authoritatively; to go forth as authoritative or binding. When used with reference to writs, process, and the like term is ordinarily construed as importing delivery to the proper person, or to the proper office for service'. . . . The term `issue' means more than mere clerical preparation, dating and attestation of a writ and, as applied to a citation, includes delivery to an officer or third person for delivery to an officer for service." (Citations omitted.) Id., 667. This definition led the court to affirm the trial court's conclusion that summary process was issued on "the date the summary process was delivered to the judicial marshal. . . ." Id., 668.
In the present case, the plaintiff served the defendant with a notice to quit on June 8, 2007. Therein, he ordered the defendant to vacate the premises by June 18, 2007. Additionally, the plaintiff concedes that he signed the summons on June 15, 2007. Nevertheless, in his affidavit, the plaintiff's attorney, Ernest Arbizo, avers that, "[o]n June 23, 2007, [he] delivered the summons and complaint in the above titled action to the state marshal for the service of process upon the defendant." While the defendant makes much of the fact that the summons is dated June 15, 2007, he fails to address why the court should rely upon the date listed on the summons rather than the date upon which the summons and complaint were delivered to the state marshal. As the Gallogly court explicitly held that process is issued when the writ is delivered "to an officer . . . for service," the plaintiff complied with the requirements set forth in § 47a-23a. The court denies the defendant's motion to dismiss.
It should be noted that, in his affidavit, Arbizo refers to himself as "a defendant" in the present case. While Arbizo is neither a party to this action nor an attorney for the defendant, the error is clearly typographical in nature. Additionally, the defendant has failed to raise an objection. The error should affect neither the validity nor the substance of Arbizo's affidavit.
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